10th Circuit grants narrow victory to family raided by a SWAT team over loose leaf tea

Here at The Watch, we’ve been closely following the case of Robert and Addie Harte, a Kansas couple who, along with their 7-year-old daughter and 13-year-old son, were raided by a SWAT team in April 2012, after police mistook Addie Harte’s loose leaf tea for marijuana. Read the linked posts for a full recap, but here’s a quick summary:

Seven months before the raid, a state trooper was surveilling a hydroponic plant store, writing down descriptions of customers and recording their license plates. The trooper saw Robert Harte and his son emerge from the story carrying a small bag. Months later, local police conducted a trash pull at the Harte home, which police can do without a warrant. They did three pulls and each time found the wet remnants of Addie Harte’s loose leaf tea. On two occasions, drug field tests on the tea registered false positives for pot. On this basis — and this basis alone — the cops staged a full-on raid of the Harte home. There was no further investigation.

It should have been immediately clear that the marijuana grow they were looking for was actually a school project. Robert Harte was helping his son grow tomatoes. Yet the police held the Hartes and their children under armed guard for more than two hours. Though they were clearly looking for a marijuana grow, when they didn’t find one the police then re-searched the home for evidence of personal-use quantities of drugs. They even brought in a drug dog. They found nothing. They ended the raid by telling the Hartes that they should have their children tested for drug use.

The raid was part of a series of raids across the state conducted on April 20 — that is, 4/20. Police agencies across the state had conducted similar raids the previous year. Before the raids even happened, the local sheriff’s department had already scheduled a press conference to gloat about its bounty. Despite relatively weak results — the raids on April 20 produced two arrests for misdemeanor possession, but not a single marijuana plant — they went ahead with the press conference, which produced news reports about how police had halted drug activity “in good neighborhoods” in places such as Leawood (where the Hartes live) and at the homes of “average Johnson County families.”

According to court records, the raid on the Harte family became something of a joke among local police. (Hilarious!) At the time, Kansas open-records laws were enormously deferential to police agencies. The Hartes had to spend more than $25,000 in legal fees just to get a copy of the affidavit for the search warrant. Which is to say they had to spend $25,000 just to learn why armed police officers stormed their home early in the morning. It was only then that they learned about the police mistaking tea leaves for pot.

The field tests the police used on the tea leaves are notoriously unreliable. Studies have shown them to have error rates as high as 70 percent. The tests themselves say that they should only be used to establish suspicion of an illicit substance, and that the substance itself should then be sent to a lab for more conclusive tests. The police never did that, likely because they were facing pressure to conduct the raid in time for it to be part of that 4/20 press conference. Though the state trooper had spotted Robert Harte more than six months earlier, he didn’t give the sheriff’s department Harte’s name until March. The trash pulls were conducted on April 3, 10 and 17. There just wasn’t time for a lab test.

Despite all of this, in 2014 a federal district court judge dismissed every one of their claims on summary judgment. Here’s a summary of the decision from a post I put up at the time:

U.S. District Court Judge John W. Lungstrum dismissed every one of the Hartes’s claims. Lungstrum found that sending a SWAT team into a home first thing in the morning based on no more than a positive field test and spotting a suspect at a gardening store was not a violation of the Fourth Amendment. He found that the police had probable cause for the search, and that the way the search was conducted did not constitute excessive force. He found that the Hartes had not been defamed by the raid or by the publicity surrounding it. He also ruled that the police were under no obligation to know that drug testing field kits are inaccurate, nor were they obligated to wait for the more accurate lab tests before conducting the SWAT raid. The only way they’d have a claim would be if they could show that the police lied about the results, deliberately manipulated the tests or showed a reckless disregard for the truth — and he ruled that the Hartes had failed to do so.

Keep in mind that this was a ruling for summary judgment. This was not a trial. To dismiss the suit at this stage, Lungstrum needed to view the facts in a light most favorable to the Hartes. And yet he still found that at no point did the police violate the family’s constitutional rights.

As I pointed out in a subsequent post, you could make a strong argument that Lungstrum was right on the law. But you could also write an opinion that came to the opposition conclusion that was also arguably right on the law. And that’s exactly what happened this week.

The Hartes appealed Lungstrum’s decision, and his week a three-judge panel for U.S. Court of Appeals for the 10th Circuit issued its decision. It’s a complicated ruling. Each of the three judges wrote a separate opinion. In the end, the Hartes will get their day in court, but only by a narrow margin.

Here’s how the court ruled:

The court unanimously dismissed all claims against the state trooper who tipped off the Hartes to local police. The judges found that the trooper’s actions, while perhaps troubling in that they implicated people for shopping at a perfectly legal retail store, weren’t a violation of the Fourth Amendment.

By a 2-to-1 margin, the court dismissed the Hartes’ claim that either the sheriff’s department or the county should be held liable for failing to properly train the police officers who conducted the investigation and the raid.

The Hartes argued that given the weak evidence of wrongdoing and the utter lack of corroborating investigation, the SWAT tactics were an unreasonable use of force. Again by a 2-to-1 margin, the court found that while SWAT tactics themselves may have been an unreasonable use of force, in order to get past the qualified immunity afforded to police officers, the Hartes would have to show that not only were the tactics unreasonable, but also that there was clearly established law at the time stating that the officers’ tactics were unreasonable. One judge found both. One judge found that the raid was unreasonable but there was no clearly established law stating as much. Another found no clearly established law and so decided that she didn’t need to bother to determine the reasonableness of the raid itself. In the end, the Hartes’ claim was dismissed.

The Hartes also argued that it was unreasonable for the deputies to hold them for two hours under armed guard when the deputies should have known within minutes that they had made a mistake. Here, one judge ruled that this was a violation of the Hartes’ Fourth Amendment rights. Another ruled that it wasn’t. And the third ruled that it was but that there was no clearly established law stating as much. Therefore, the Hartes’ claim was dismissed.

The Hartes argued that the police violated their children’s rights in particular, by holding them under armed guard for two hours, despite finding no evidence of criminal wrongdoing. (A neighbor had approached and asked if she could take the children to school. She was denied by police.) Here, too, one judge ruled for the Hartes. One judge ruled that there was no violation — on the curious argument that the deputies weren’t pointing their guns at the children but rather were holding their guns near the children in a fashion ready for immediate use. This apparently makes all the difference. Finally, the third judge ruled that there is no clearly established law on the point, so she needn’t bother to determine whether holding the children under armed guard constituted excessive force.

The Hartes also made several claims under Kansas state law. For the purposes of this post, I’d like to stick with their claims under the U.S. Constitution. But it’s worth noting that the court did allow some, but not all, of the Hartes’ state claims to move forward.

The Hartes made numerous arguments that the search warrant itself was illegal, thus making the search of their home unreasonable. They cited, for example, the lack of corroborating investigation — the police did no surveillance, no background check, no controlled buy. A background check would have revealed that the Hartes had no criminal record. It likely would have revealed that they are retired CIA employees who had security clearances. The police also didn’t check the Hartes’ utility records to see if they were using inordinate amounts of water or electricity. (A check would have shown that they weren’t.) They pointed to the sloppiness of relying on the field tests and the fact that wet tea leaves of the variety Addie Harte used look and smell nothing like marijuana. Once again, on all of these claims, one judge ruled for the Hartes, while another ruled against them every time. The third judge ruled against the Hartes on every claim but one. She found that the Hartes had presented credible evidence that the officers may have lied about the field test results. So on their argument that the search warrant was invalid, the Hartes lost 2 to 1 on every claim but that one, which they won 2 to 1.

For the record, it was Judge Carlos Lucero (a Clinton appointee) who ruled in favor of the Hartes on nearly all of their claims. Judge Gregory Phillips (an Obama appointee) ruled against them on all of their claims. Judge Nancy Moritz (also an Obama appointee) ruled against the Hartes on nearly all their claims but cast the deciding vote on the one claim that will allow their case to move forward.

Some legal commentators on Twitter are touting this decision as a victory for the Fourth Amendment. That’s largely because Lucero’s opinion appears first and begins this way:

Law-abiding tea drinkers and gardeners beware: One visit to a garden store and some loose tea leaves in your trash may subject you to an early-morning, SWAT-style raid, complete with battering ram, bulletproof vests, and assault rifles. Perhaps the officers will intentionally conduct the terrifying raid while your children are home, and keep the entire family under armed guard for two and a half hours while concerned residents of your quiet, family-oriented neighborhood wonder what nefarious crime you have committed. This is neither hyperbole nor metaphor—it is precisely what happened to the Harte family in the case before us on appeal …

The defendants in this case caused an unjustified governmental intrusion into the Hartes’ home based on nothing more than junk science, an incompetent investigation, and a publicity stunt. The Fourth Amendment does not condone this conduct, and neither can I.

That’s some pretty strong language. But for all the wrongs committed by law enforcement in this case, it’s the language of the majority on only a single claim. For all the other claims, Lucero’s eloquent defense of the Fourth Amendment is essentially a dissent.

The Hartes are unquestionably innocent. No one disputes that. Their only “transgressions” here were to shop at a hydroponic store for a school project and to have an affinity for loose leaf tea. Neither of those things is illegal. Yet on those two acts alone, the local sheriff’s department sent a team of heavily armed police barreling into their home early in the morning, while their children were still inside. They then held the family under armed guard for two hours, riffled through the family’s drawers, closets, dressers and bags, and then, despite finding nothing, included the Hartes in the “success stories” they touted to the local media. The Hartes then spent $25,000 just to get a copy of the search-warrant affidavit, which showed that the police badly botched the investigation, that they were acting under the pressure an arbitrary deadline, that they relied on field tests the slightest bit of research would have shown are highly unreliable, and that they then conducted a volatile raid without verifying those results with the crime lab. Five years later, after it was summarily dismissed by a federal district court, a federal appeals court has allowed their case to move forward on a single claim, and by the thinnest of margins. And all of this before the Hartes have even gone before a jury.

The Hartes and their legal counsel deserve credit for sticking with this case. And it’s encouraging that they’ll get their day in court. But most people subjected to these sorts of tactics don’t have the social standing to fight back. Most understandably fear retaliation. Most can’t get a lawyer to listen to them. Most don’t have tens of thousands of dollars to spend merely to collect the evidence they need to file a lawsuit, much less the tends of thousands more to see that lawsuit through.

Which why — Lucero’s heartening opinion aside — this case is hardly a victory for the Fourth Amendment. Instead, the case shows that even after egregious violations of clearly innocent victims, it typically takes several years, some luck and a small fortune to get even the slightest bit of vindication — never mind accountability.

It also shows just how arbitrary Fourth Amendment jurisprudence can be. Lucero’s opinion is about as forceful a condemnation of police actions as you’ll find from a federal judge. Yet it stands in direct contradiction to the opinion of Phillips (who bends over backward to give the police every benefit of the doubt) and certainly of Lungstrum, the district court judge. Moritz’s opinion falls somewhere in between. Whether or not your rights have value often depends on getting the right judge — or, at the appellate level, the right panel of judges.

One other small aside worth noting: Opponents of the “exclusionary rule” complain that it protects only the guilty. Over the years, exclusionary rule critics such as Antonin Scalia and Clarence Thomas have suggested that it would be better to protect the innocent victims of illegal searches by allowing them to bring lawsuits. This case demonstrates why that argument fails.

We like to think of the Bill of Rights as etched in stone. But our rights are only as secure as our ability to extract real consequences when government officials violate them. In practice, that requires a lot of time and a lot of money — well more of both than most Americans have. Even then, it also requires the luck of drawing a sympathetic judge, and a jury willing to rule against police officers (no small thing).

Finally, even if the Hartes were to win in front of a jury, the deputies themselves would be indemnified from damages. Any award would be footed by Kansas taxpayers. Damages and reimbursement for their court costs and legal fees would at least make the Hartes whole again. But it isn’t much of a disincentive for the next time Kansas police decide they want to stage a bunch of dangerous raids for a 4/20 photo op.

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Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."